TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00509-CV

Texas Health and Human Services Commission, Appellant

v.

Ethan Vestal, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-18-001435, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

After Ethan Vestal was terminated from his employment at Terrell State Hospital

(the Hospital), he sued the Texas Health and Human Services Commission (the Commission)

under the Texas Whistleblower Act. See Tex. Gov’t Code §§ 554.001-.010. In this interlocutory

appeal, the Commission asserts that the trial court erred in denying its jurisdictional challenge to 

Vestal’s suit. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Specifically, the Commission 

argues that Vestal’s suit is barred by immunity because the allegations and the evidence fail to 

show that Vestal was terminated because he reported illegal conduct and not for other legitimate 

reasons. Because we conclude that the evidence is sufficient to create a fact issue on this

question, we affirm the trial court’s order.
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IMMUNITY AND THE WHISTLEBLOWER ACT

The doctrine of sovereign immunity generally bars suits against the State or its 

subdivisions, absent a legislative waiver. University of Tex. at Austin v. Hayes, 327 S.W.3d 113, 

115 (Tex. 2010); State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). Sovereign immunity 

implicates a court’s subject-matter jurisdiction to hear a case. Engleman Irrigation Dist. v. 

Shields Bros., Inc., 514 S.W.3d 746, 755 (Tex. 2017). When a government defendant challenges 

jurisdiction based on immunity, the plaintiff’s burden to affirmatively demonstrate jurisdiction

includes the burden of establishing a waiver of immunity. Town of Shady Shores v. Swanson,

590 S.W.3d 544, 550 (Tex. 2019). To determine if the plaintiff has met that burden, the court

considers the facts alleged by the plaintiff and, to the extent relevant to the jurisdictional issue, 

the evidence submitted by the parties. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 

542 (Tex. 2003).

The Whistleblower Act waives a governmental entity’s immunity from suit to the 

extent the entity is liable under the Act. See Tex. Gov’t Code § 554.0035. Consequently, the 

elements of a claim under the Act are also jurisdictional facts. Lueck, 290 S.W.3d at 881-82.

When the trial court’s jurisdiction is premised on a violation of the Whistleblower Act, the

plaintiff meets his burden of affirmatively demonstrating jurisdiction by alleging facts or

producing evidence of facts sufficient to establish (1) that he was a public employee (2) with a 

good-faith belief that he was reporting a violation of the law as defined by Section 554.001, 

(3) that the report was made in good faith to an appropriate law-enforcement authority, and 

(4) he was subject to an adverse personnel action, such as suspension or termination. See Tex. 

Gov’t Code § 554.002(a). Although the Whistleblower Act does not expressly include the 

element of “causation,” the Texas Supreme Court has recognized that the plaintiff must also 
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demonstrate a “but-for” causal connection between his report and the adverse personnel action.

Office of the Att’y Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020); Texas Dep’t of Human 

Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995).

When, as in this case, a jurisdictional challenge to a Whistleblower Act claim 

challenges the existence of one or more elements of the claim, the challenge must be denied 

if the evidence, viewed in the light most favorable to the nonmovant, creates a genuine issue 

of material fact as to each of the challenged elements. See Town of Shady Shores, 590 S.W.3d

at 552 (explaining that “when a challenge to jurisdiction that implicates the merits is properly 

made and supported, . . . the plaintiff will be required to present sufficient evidence on the merits 

of her claims to create a genuine issue of material fact”). We review the trial court’s ruling on 

the challenge under a de novo standard of review. Id.

BACKGROUND

Vestal was employed by the Hospital, which is operated by the Commission, as 

a psychiatric nursing assistant beginning in July 2017. According to the undisputed allegations 

in Vestal’s pleadings and the jurisdictional evidence presented by the parties, viewed in the

light most favorable to Vestal, during his employment, Vestal reported witnessing four separate 

incidences of alleged abuse by other hospital employees toward patients.

According to his pleadings, Vestal made his first report after he witnessed a

Hospital employee, Brian Alexander, choke and then “slam a patient to the ground.” That

incident allegedly occurred on September 11, 2017, and Vestal reported the incident to the

Department of Family and Protective Services (DFPS) that same day and a few weeks later to the 

Office of the Inspector General (OIG). Later that same month, Vestal made a second report after 
4

a patient “with multiple bruises covering his body” informed Vestal that “a staff member had hit 

him multiple times.” According to Vestal’s deposition testimony, submitted by the Commission 

in support of its plea and motion, Vestal made a third report in early October 2017. In this 

report, Vestal notified the DFPS and then the OIG that he had discovered scratch marks and 

choke marks on a juvenile patient’s neck. Although Vestal did not witness the incident giving 

rise to the marks, the juvenile’s mother informed Vestal that the marks had been made by 

Hospital staff while attempting to restrain the juvenile. Finally, Vestal made his fourth report to 

the DFPS in late October 2017, after he allegedly witnessed another employee throw a juvenile

to the ground and cause injury while the employee was engaged in what Vestal described as 

“roughhousing with the children.”

On November 27, 2017, Vestal’s director supervisor, Nurse Manager Anthony 

Brown, initiated a termination of Vestal’s employment. On December 29, 2017, Nurse 

Administrator Leslie Wilson, Brown’s supervisor, notified Vestal by letter that he was “not 

considered suited to the position assigned” and that his employment was terminated. On March 

21, 2018, Vestal filed suit.

1

In response to Vestal’s suit, and after discovery, the Commission filed a plea to 

the jurisdiction combined with a no-evidence and traditional motion for summary judgment. See

id. (explaining that challenge to existence of jurisdictional facts that also implicate merits of 

underlying claim may be made through plea the jurisdiction or by traditional or no-evidence 

motion for summary judgment). In its plea and in its traditional motion for summary judgment,

1

 In his original petition, Vestal named the Hospital as a co-defendant. The Commission 

and Hospital moved to dismiss the Hospital from the suit because, according to the Hospital, it is 

not a legal entity separate from the Commission and thus not a proper party. Vestal subsequently

filed a notice of non-suit as to his claims against the Hospital. See Tex. R. Civ. P. 162 (dismissal 

or non-suit).
5

the Commission asserted, in part, that Vestal had failed to plead facts or produce evidence 

showing that the individuals who made the decision to terminate his employment had any 

knowledge of his alleged Whistleblower reports and, moreover, that the evidence affirmatively 

shows that these individuals did not learn of the alleged reports until Vestal filed suit. In its 

no-evidence motion for summary judgment, the Commission argued that Vestal could not

succeed in his Whistleblower Act claim because he could not produce more than a scintilla of 

evidence on any of the elements of the claim.

Following a hearing on the Commission’s plea and motion, the trial court signed 

an order denying the Commission’s plea to the jurisdiction. In its order, the Court explained that 

it was denying the plea because Vestal had, “at a minimum, raised a fact question on his good 

faith belief” that he made his reports to “appropriate law enforcement.” In the same order, the 

trial court also denied the Commission’s no-evidence motion for summary judgment and 

traditional motion for summary judgment, stating in part that Vestal had presented evidence 

sufficient to raise a fact issue on “causation.” This interlocutory appeal followed.

In one issue on appeal, the Commission argues that trial court erred in failing to 

dismiss Vestal’s suit because, according to the Commission, Vestal failed to present more than a 

scintilla of evidence to show that he was fired because of his reporting and because the evidence

instead shows that he was terminated solely for a legitimate reason.

ANALYSIS

To establish the element of causation in a Whistleblower Act case, an employee

must demonstrate that he “suffered discriminatory conduct by his or her employer that would 

not have occurred when it did if the employee had not reported the illegal conduct.” City of 
6

Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The employee does not, however, have to 

prove that his reporting was the sole cause for the employer’s adverse personnel action. Hinds, 

904 S.W.2d at 634.

Circumstantial evidence may be sufficient to establish a causal connection 

between an adverse employment action and the employee’s good-faith reporting. Zimlich,

29 S.W.3d at 69. Such evidence includes: (1) knowledge of the report of illegal conduct,

(2) expression of a negative attitude toward the employee’s report of the conduct, (3) failure 

to adhere to established company policies regarding employment decisions, (4) discriminatory 

treatment in comparison to similarly situated employees, and (5) evidence that the stated reason 

for the adverse employment action was false. Id. A plaintiff need not present evidence 

involving all five categories to prove causation. Texas Dep’t of Crim. Justice v. McElyea, 

239 S.W.3d 842, 856 (Tex. App.—Austin 2007, pet. denied). However, the evidence must, at 

a minimum, “show that the person who took the adverse employment action knew of the 

employee’s report of illegal conduct.” Kirkland v. City of Austin, No. 03-10-00130-CV,

2012 Tex. App. LEXIS 2769, at *7 (Tex. App.—Austin Apr. 5, 2012, no pet.) (mem. op.) 

(quoting Harris County v. Vernagallo, 181 S.W.3d 17, 25 (Tex. App.—Houston [14th Dist.] 

2005, pet. denied)). “This is because the decision-maker could not fire an employee because of 

the employee’s report of alleged illegal conduct if the decision-maker did not even know the 

employee made such a report.” Id.

In response to the Commission’s motion for summary judgment, and now on 

appeal, Vestal argues in part that he is entitled to the rebuttable presumption found in Section

554.004(a) of the Act. Section 554.004(a) provides that when the suspension, termination, or 

adverse personnel action occurs not later than the “90th day after the date on which the employee 
7

reported a violation of law, the suspension, termination, or adverse personnel action is presumed, 

subject to rebuttal, to be because the employee made the report.” Tex. Gov’t Code § 554.004(a).

When applicable, this statutory presumption relieves the employee of his initial burden to prove

that he was terminated because he reported a violation of the law. Texas A&M Univ. v. Chambers,

31 S.W.3d 780, 784 (Tex. App.—Austin 2000, pet. denied). The presumption does not shift the 

burden of proof, however, and stands only in the absence of evidence to the contrary. City of 

Fort Worth v. Johnson, 105 S.W.3d 154, 163 (Tex. App.—Fort Worth 2003, no pet.) (citing 

Texas Nat. Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 723 (Tex. App.—Austin 

1996, no writ)). Therefore, once an employer produces sufficient evidence to support a finding 

of the nonexistence of a causal connection between the employee’s termination and the report, 

the case then proceeds as if no presumption ever existed. Chambers, 31 S.W.3d at 784.

Here, the undisputed evidence shows that Vestal made his last report in October 

2017 and that he was terminated in December 2017. Consequently, a presumption arises that 

Vestal was terminated due to his reporting, and in the absence of evidence to the contrary, this 

presumption is sufficient to create a genuine issue of fact on the element of causation. See Tex. 

Gov’t Code § 554.004(a); Johnson, 105 S.W.3d at 163. Therefore, to prevail on its jurisdictional 

challenge based on its assertion that Vestal cannot produce legally sufficient evidence to 

support the element of causation, the Commission was required to first rebut this statutory 

presumption by producing at least some evidence to support a finding of the nonexistence of 

the causal connection.

On appeal, the Commission argues that Vestal cannot rely on the Act’s

presumption to defeat summary judgment because, in the Commission’s view, the record

conclusively shows that the individuals who made the final decision to terminate Vestal’s
8

employment—Vestal’s direct supervisor, Anthony Brown, and Brown’s direct supervisor, 

Leslie Wilson—did not have any knowledge of Vestal’s reports and that he was terminated for

a legitimate, non-retaliatory reason that is unrelated to his alleged reports. In support of these 

assertions, the Commission relies on declarations by Brown and Wilson, attached to its motion

for summary judgment. See Tex. R. Civ. P. 166(a)(f) (form of affidavit in support of or in 

opposition to summary judgment); see also Tex. Civ. Prac. & Rem. Code § 32.001 (providing 

that unsworn declaration may be used in lieu of affidavit “required by statute or required by a 

rule, order, or requirement adopted as provided by law”).

According to Brown’s declaration, Vestal was terminated due to his failure to 

follow Commission policy regarding the “wanding” of patients (i.e., the use of a hand-held metal 

detector). In his affidavit, in relevant part, Brown states:

4. On November 27, 2017, I initiated probationary separation (termination)

because of Mr. Vestal’s failure to follow [Commission] policy. My decision was 

based on information I received that while Mr. Vestal was at another facility 

hospital with a patient, he observed the patient conceal an item that appeared to be 

metal fork in his bedding. . . . Mr. Vestal returned to [the Hospital] with the 

patient, who was known to be high risk due to previous violent conduct but failed

to wand the patient with a handheld metal detector when they arrived. Mr. Vestal 

also failed to inform anyone at [the Hospital] that there was a possible fork or

other contraband in the patient’s possession. A shank fashioned out of a fork was 

later found on [the Hospital’s] premises. Based upon this incident alone, I found 

Mr. Vestal to be unsuitable for his position.

5. Mr. Vestal’s failure to wand the patient and/or to report this incident 

placed the [Hospital] staff and all the other clients at risk for bodily injury and 

even death. The failure to wand a patient returning from off-campus visits is a 

violation of the [Hospital] Walk-through Metal Detector Policy. A true and correct

copy of that policy is attached here as Exhibit 2. The policy requires, among 

other things, that hand-held detectors, or “wands,” be used on all patients coming 

back from outside facilities. The purpose of this requirement is to properly screen 

all patients returning from outside facilities for items, including metal objects

such as forks, that pose a threat to the safety and welfare of [Hospital] patients 

and staff and accordingly, are prohibited.
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. . .

10. On November 26, I received an email from [a nurse at the Hospital] 

informing me of the incident with Ethan Vestal and the fork/shank discovered at 

[the Hospital]. The following day, I forwarded that email to [Human Resources 

staff] and my supervisor, Leslie Wilson, indicating that I wanted to initiate 

probationary separation.

As to the reports made by Vestal, Brown states:

8. On or about September 11, 2017, during my shift as nurse coordinator, I 

received a call from [a Hospital nurse] who indicated that Mr. Vestal witnessed 

[another employee] choke a patient. During our conversation, [the Hospital nurse]

appeared to be very concerned and wanted to know what they should do. I

instructed [the Hospital nurse] to have Mr. Vestal immediately report the incident 

to DFPS, and that anyone else who might have witnessed the incident needed to 

report it immediately as well.

9. Termination of Mr. Vestal’s probationary employment was in no way 

related to any alleged reports of violations of law that he made to DFPS and/or 

OIG. I was not even aware that Mr. Vestal had made any reports other than the

report to DFPS regarding the incident involving Brian Alexander. In fact, because

[Hospital] employees are required to report all abuse or neglect, it would be a 

violation of policy for Mr. Vestal not to report the incident he observed. Failure 

to report abuse, neglect or exploitation to DFPS is grounds for disciplinary action.

Similarly, in his declaration, Leslie Wilson states:

3. In November 2017, I received notice that Mr. Vestal’s probationary 

separation (or termination) was initiated by Anthony Brown, [Hospital] Nurse 

Manager, because of Mr. Vestal’s failure to follow [Hospital] policy. I was 

informed that Mr. Vestal neglected to wand a patient upon return to [the Hospital]

from an outside facility where he saw the patient stash an item that could have 

been a fork in his bedding. Mr. Vestal also failed to report the incident to anyone 

at [the Hospital] before a shank fashioned out of a fork was discovered on 

[Hospital] premises. The patient later admitted to hiding the fork, bringing it into 

[the Hospital], and fashioning a shank out of it. Mr. Vestal’s failure to wand and 

report this incident endangered the safety of all patients and staff at [the Hospital].

Based upon this negligent conduct, I agreed with Mr. Brown’s determination that 

Mr. Vestal was unsuitable for his position. No other factors formed the basis for 

my decision to approve Mr. Vestal’s termination.
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6. Termination of Mr. Vestal’s probationary employment was in no way 

related to any alleged reports of violations of law that he made to DFPS 

and/or OIG. I can state with personal knowledge and certainty that none of my 

decisions regarding Ethan Vestal were made with any intention of retaliating 

against him on any basis whatsoever. In fact, prior to his filing this lawsuit, I was 

not aware of any reports Mr. Vestal made regarding any alleged violations of law 

at [the Hospital].

We agree with the Commission’s assertion that this evidence constitutes more 

than a scintilla of evidence that Vestal was terminated for reasons unrelated to his reporting 

of alleged violations of law. That is, the declarations are sufficient to support a finding that 

Vestal was terminated not based on any report of illegal activity but instead due to his negligent 

conduct in failing to follow the Commission’s “wanding” protocols and policies. See Chambers, 

31 S.W.3d at 784 (explaining that once an employer produces sufficient evidence “to support a 

finding of non-retaliation, the case proceeds as if no presumption [under Section 554.004(a)] 

ever existed”); see also Tex. Gov’t Code § 554.004(b) (“It is an affirmative defense that the 

[employer] would have taken the action against the employee that forms the basis of the suit 

based solely on information, observation, or evidence that is not related to the fact that the 

employee made a report protected under this chapter of a violation of law.”). Consequently, we 

conclude that application of the statutory presumption, standing alone, is insufficient to support 

the trial court’s jurisdictional ruling in this case.

We disagree, however, with the Commission’s assertion that Wilson’s and 

Brown’s declarations conclusively establish that the individuals responsible for the decision to

terminate Vestal’s employment were unaware of the reports of illegal conduct that are the basis 

of Vestal’s claim. Although the parties agree that Brown and Wilson were responsible for the 

decision to terminate Vestal’s employment, the declarations establish that Brown, Vestal’s direct 
11

supervisor, was aware of at least one of the incidents that Vestal reported—specifically, the 

September 2017 incident that led to Vestal’s first report to the DFPS. Moreover, Brown 

acknowledges in his declaration that he was aware that Vestal made “the report to DFPS 

regarding the incident involving Brian Alexander” and that it would have been a violation of

Commission policy for Vestal to have not reported the incident.

Further, in his response to the Commission’s plea and motion for summary 

judgment, Vestal attached Brown’s and Wilson’s deposition testimony as evidence in support of 

his Whistleblower Act claim. In his deposition, Brown acknowledged receiving an e-mail in 

November 2017 from nursing coordinator Nakia Cole, in which Cole explained that she was 

having “issues finding an [overtime] assignment for [Vestal] . . . due to RNs not wanting him 

working on the Unit, under their supervision, under their license.” According to the e-mail, one 

of the nurses reported to Cole that she believed Vestal was mentally unstable and was “on a 

mission to do God’s work and clean house here.” Brown denied that the issue with the nurses 

was related to Vestal’s reporting but admitted that he did not investigate further into the reasons 

for the nurses’ refusals to work with Vestal.

Similarly, in his deposition, Wilson recounted a meeting that he had with Vestal

after a nurse manager reported to him that “staff were not wanting [Vestal] to work over there.”

During that meeting, Vestal told Wilson that he believed that he was having a problem with his 

co-workers because “people just don’t like me” and “they think I’m going to turn them in.”

When Wilson was asked in the deposition what he thought Vestal meant by “turn them in,”

Wilson explained, “I had assumed it was about our DFPS program or abuse and neglect 

allegation program—you know, protocol and what we have to do. But, you know, I also told 

him everybody has to do that, that it’s required of all employees that they suspect or have 
12

knowledge of.” Therefore, although Wilson denied in his declaration that he was actually aware 

of any of Vestal’s reports prior to this lawsuit, Wilson’s deposition testimony suggests that

Vestal, in fact, informed Wilson that his co-workers were hostile towards him and that, in 

Vestal’s view, this was due to his reporting of illegal conduct.

“In determining causation, we focus on those with authority in the decisionmaking process that resulted in the adverse employment action and whether there is

evidence ‘that the decision-maker or decision-makers’ acted with retaliatory motive.” Rodriguez,

605 S.W.3d at 193. Here, the evidence suggests that when Vestal was terminated, the Hospital

employees responsible for that decision (Brown and Wilson) knew that he had reported illegal 

conduct at least once during his 6-month employment. See id. (recognizing that “knowledge of 

the report is a form of circumstantial evidence”). In addition, more than a scintilla of evidence 

exists that Brown and Wilson knew that Vestal was having problems with his co-workers and 

that Vestal believed those problems were because of his reporting; however, neither Brown nor 

Wilson investigated the issue further. Instead, within a month of his last report, and the same 

month that Cole reported that nursing staff did not want to work with Vestal, Brown initiated 

the termination of Vestal’s employment. See id. (“The time that passes between the protected 

conduct and the adverse personnel action is also relevant to any causal connection.”).

Viewing the evidence in the light most favorable to Vestal, we conclude that a 

genuine issue of material fact exists as to whether Vestal’s reporting was a but-for cause of the 

Commission’s decision to terminate his employment when it did. Consequently, the trial court 

did not err in denying the Commission’s jurisdictional challenge on this ground.
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CONCLUSION

Having overruled the Commission’s sole issue on appeal, we affirm the trial court’s

order denying the Commission’s plea to the jurisdiction and motion for summary judgment.

__________________________________________

Chari L. Kelly, Justice

Before Justices Goodwin, Baker, Kelly

Affirmed

Filed: December 10, 2020